Principles of a lower court's discretion according to SCOTUS

The decision in Beard, comparing the per curiam (unsigned) opinion in Michigan v. Fischer, Stevens and Sotomayor dissenting (opinion here); the Court swoops in to reverse the trial judge and appellate affirmation in Fischer ruling in favor of suppression motion while in Beard narrowly holds on the basis that discretion in the lower courts ought to be preserved.

Makes sense as long as one does not take into account principle too strongly.

Postconviction Practices

Thanks to Doug, as alway, here is the ABA symposium on postconviction practices:

Prof. Berman also posts here on Second Amendment cases, Heller and McDonald, suggesting that the cause of criminal justice reform is related, discussing the politics as well.

Remarkably there is in the air a question whether SCOTUS might overrule a one hundred year old decision in the Slaughterhouse cases regarding the Privileges or Immunities clause of the Second Amendment! Doug suggests liberals should tend towards favoring the overruling. You have to go read the McDonald brief.

That would place liberals in bed with the NRA. Gives new meaning to the phrase intercourse between nations, or in this case national political parties. You gotta love how those clever libertarians love to stir the pot. Karl Rove, where are you now?

Yes, the states should and can be incubators for reform (in all vectors). But which one has the balls to move sensibly toward what we might call, fiscal responsibility, anti- tough (stupid tough) on crime? Restore judicial discretion, remove mandatory minimums, for starters.


Symposium link

Topics include

collateral consequences
clemency
claims of innocence
procedural obstacles

and a primer by Prof Taslitz at Howard University in DC.

Productivity, Global (Office) Warming and Japan

The Hilary Clinton of Japan business productivity and cutting energy are all featured in this Newsweek eyecandy, "Want to Save Energy, Think Japanese" -- always interesting for one who was born in Otaru (that's Japan, up North, where the air is/was could not be cleaner, the mountain waters fresher, the veggies and fish more fresh and nutritious). Wonder what it's like there now?

BECAUSE, I have been reading history in my spare time, by Regius Prof. of Modern History, Richard Evans of Cambridge, The Third Reich at War, my posting has been sparse, sorry.

Here is a HABEAS piece that promises to be of interest, re Tarbles case from UVA profs, Woolhandler and Collins, via bepress (thanks Doc as always).

Serious Appellate Review Can Make a Difference

If perfunctory or truncated review of Georgia's death sentences by the state Supreme Court would be likely to result in imposition of arbitrary and unconstitutional sentences, then, by similar logic truncated federal habeas review over state criminal proceedings would likely result in rising incidents of unfair and unconstitutional decisions at the state level.

At this link is the opinion by Justice Stevens in which he underscores the truncated Georgia Supreme Court mandatory review of its death penalty cases is not the kind of review represented to the US Supreme Court in Zant.

Bad Trail Poetry

I'm shocked at the primary sweep Obama has managed to obtain.
Am I still living in the US of A?

They say that Hillary's back is against the wall, that she needs a political hat trick.
No question the big MO is going that way, even though some were afraid to say it sooner.

The question is, will there be backlash?
The tail of the dragon in defeat is still unpredictably dangerous.

The Asian, Latino, Black vote seems to have been, caricatured.
The white male's, the white woman's too is broad brush, certain.
But talk is cheap. In which direction will the vote actually be cast?
As Maine? Or New Hampshire? By a margin of . . . damn it's going to be close.
The superbowl wasn't this hard on the fingernails.

Michigan and Florida? Outta there. Who voted anyway?
Romney, out but could be back in 'twelve.

No question D turnout has never been higher.
So if super delegates don't go with the popular vote, what happens next?

Iglittarati

AND ON A LIGHTER NOTE:

The administration immediately condemned the House action, noting that no White House official has ever been cited for contempt. "This action is unprecedented, and it is outrageous. It is also an incredible waste of time -- time the House should spend doing the American people's legislative business," White House press secretary Dana Perino said in a statement.

Yes, the legislative business of, say, impeaching the President, investigating wrongdoing emanating from the West Wing, which has, you don't say, been politicizing law enforcement, trashing Justice, US Attorneys?

Oh, but that's exactly what the congress was doing. They're just finding more balls now. Read the WP on it here. Even if they will be pardoned anyway, don't we just want to know if anybody did anything wrong? Don't the ones who are under scrutiny want to enlighten us? Don't we care? This theoretical fight over Executive Privilege carries only so much water when at stake we find fragile notions of trust, integrity of Justice, etc.

December 7 is a date which will live on, in infamy to infinity ad infinitum. Bad, very bad. The point is not to throw anybody in jail but to promote the ability of Congress to investigate the executive, if and when necessary. It has never been more necessary.

AND ON HABEAS: (Thanks Howard)

Of Beethoven, of vodka, or of the Bill of Rights containing the first ten amendments to the U.S. Constitution? The U.S. Supreme Court has ruled that if a criminal suspect indicates in any manner during custodial questioning that he wishes to remain silent, interrogation must cease. Today, a fifteen-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit resolves whether a criminal defendant's statement, during an interrogation, that "I plead the fifth" is sufficient to invoke the right to remain silent. Complicating this question, the appeal arises in the habeas context challenging a state court conviction and is governed by the federal law whose acronym is AEDPA. The majority, in a decision that you can access here, overturns the federal district court's denial of habeas relief. Back on November 6, 2006, a three-judge Ninth Circuit panel voted 2-1 to affirm the district court's denial of habeas relief. Now-Chief Judge Alex Kozinski joined in the original panel's majority opinion, which a federal district judge sitting by designation wrote. The judge who dissented from the panel opinion wrote the en banc majority opinion on behalf of a sizable majority. Because this case was reargued en banc before Kozinski became the Ninth Circuit's chief judge, he was not guaranteed a seat on the en banc panel, and he was not randomly selected to serve on the en banc panel. Thus, we can only imagine what he might have said in response to today's ruling.

And,

By a vote of 8-5, en banc Sixth Circuit holds that the federal constitutional right to the appointment of counsel for indigent defendants seeking first-tier review of plea-based convictions in Michigan state court does not apply retroactively on habeas review: You can access today's ruling at this link. The U.S. Supreme Court specifically recognized this right to counsel in Halbert v. Michigan, a ruling that issued in June of 2005.

And,

By entering into a plea that required at least a 27-year prison sentence on one count of child exploitation, defendant waived any Eighth Amendment challenge to what that the federal district judge described as "the most unjust sentence that I have ever imposed": The U.S. Court of Appeals for the Eighth Circuit issued this ruling today (2/14).

Crow's Nest

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Beam Me Up, "Scottie"

Clashing Perspectives On Habeas Corpus in the “War on Terror”--The Constitution versus the Statute: The Constitution and a law that spells out the reach of habeas corpus sparked an exchange between Attorney General Alberto R. Gonzales and the senators. Although everyone -- including, apparently, the attorney general -- agrees the Constitution protects a right to habeas corpus, there is considerable debate over the reach of that right. That is the focus of a bill before Congress as well as cases involving "enemy combatants" headed to the Supreme Court.

The senator incorrectly said the Supreme Court had already ruled the Constitution protects the habeas rights of detainees at Guantanamo.
Gonzales responded by suggesting the Constitution does not protect habeas corpus at all.

"The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away," he said.

Boy, talk about offering a mile and taking an inch...

"Now, wait a minute," Specter interrupted. "The Constitution says you can't take it away except in case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus?"

Lawyers delicately tried to explain what the attorney general meant. "This didn't come out as cleanly and crisply as we might have hoped," said one, who spoke on the condition that he not be identified. "The question is not whether Americans have a right to habeas corpus. That is undisputed. What's at issue is the scope of the right."

Precisely. The poem about the cake comes to mind . Little by little, bit by bit, crumb by crumb, the whole cake was gone. David G. Savage, Los Angeles Times, for the factual reporting. The opinion is wholly “my bad.” That's a “Rosy Original” if I ever heard one. Anybody know if she kicked Donald's ass yet? Because if anybody can it's her.

Relatedly (stole this good adjectival non-word from Prof. Berman) how does the Spectrum of Abstraction,“Alice in Wonderland” stuff from my posts here tie together? The scope of habeas is as related to its application as flies gathering on a steaming summer day. Gutting habeas by shrinking the standard of review (via the unconstitutional provisions of AEDPA) into the size of a pin-head (-hole?) is a lot like shaving the “scope” which is not too unlike “saving face” (or that other smooth part of the baby). Of course there's Congress, and there's the Constitution. Who wins? Tune in, read on, you won't be disappointed!

Deference is Hot

These are interesting because "deferential review" is one hot potato:

A. The petition for cert (pending, earlier post) in Varner v. Thomas (3d Circuit) presented these questions:

1. Where counsel’s action at trial is objectively reasonable, may the conviction nonetheless be reversed on the ground that counsel’s subjective thought process is found deficient?
(Answered in the affirmative by the United States Court of Appeals for the Third Circuit, in conflict with other circuits.)

2. Where a state court has clearly adjudicated the merits of an ineffective assistance of counsel claim, may a federal court avoid AEDPA deference and invoke de novo review as to any aspect of the claim that, in the federal court’s view, has not adequately been addressed in the state court’s legal analysis?

(Answered in the affirmative by the United States Court of Appeals for the Third Circuit.)

REASONS FOR GRANTING THE WRIT (verbatim)

I. The Circuits have split in constructing “objective” and “subjective” elements of the Strickland test. This Court should grant certiorari to make clear that an attorney’s subjective thought processes cannot trump an objectively reasonable rationale for his conduct.

II. This Court’s decisions in Weeks v. Angelone and Wiggins v. Smith have led to confusion concerning the nature of “deference” on habeas review. The Court should grant certiorari to make clear that review under § 2254(d) of the habeas act is of the state court’s ruling, not its reasoning.

The number of cases affected by this circuit conflict is unusually high, because ineffective assistance is perhaps the most frequently litigated issue in the field of criminal law. The impact is especially significant in federal habeas review of state convictions, where the subjective/ objective distinction affects application of all the special rules that have been created to accommodate federalism concerns: deference, evidentiary hearings, procedural default, and exhaustion. Even aside from such procedural matters, the difference between a subjective and an objective analysis of ineffectiveness claims is often outcome-determinative.

B. Eddleman v. McKee, No. 05-1493 (6th Cir. 12/14/2006) (6th Cir., 2006)
presents the question of what type of deference is owed on collateral review to a state court's harmless-error determination. David Eddleman was convicted of second-degree murder and a firearm offense in a Michigan state court. On direct review, the Michigan Court of Appeals affirmed his conviction, concluding that the trial court erred in admitting his coerced confession but that the error was harmless. Eddleman petitioned for a writ of habeas corpus in federal court. The district court granted the writ, and warden Ken McKee appealed.

Affirmed: holding "that, when a state court has found an error to be harmless, we should ask on collateral review whether the state court's harmless-error decision was contrary to, or an unreasonable application of, the clearly established federal rule that a trial error is harmless only if it is harmless beyond a reasonable doubt. Applying this standard of review to the case at hand, we hold that the Michigan Court of Appeals's harmless-error determination was an unreasonable application of the Supreme Court's decisions Chapman v. California, 386 U.S. 18 (1967), and Arizona v. Fulminante, 499 U.S. 279 (1991). "

C. Frantz v. Hazey, No. 05-16024 (9th Cir. 1/5/2007) (9th Cir., 2007)
Ordered that parties brief the following issues:
(1) (a) When a state court utilizes a legal test contrary to that endorsed by the Supreme Court, may we affirm the denial of federal habeas relief if the ultimate decision of the state court (but not its reasoning) is consistent with precedent of the Supreme Court? See Cooper-Smith v. Palmateer, 397 F.3d 1236 (9th Cir. 2005) (affirming denial of federal habeas relief where de novo review of an ineffective assistance of counsel claim showed that the conduct did not rise to the level of a constitutional violation); Williams v. Taylor, 529 U.S. 362, 406 (2000) ("A state-court decision will also be contrary to this Court's clearly established precedent if the state court . . . arrives at a result different from our precedent."); Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002) ("[T]he intricacies of the state court's analysis need not concern us; what matters is whether the decision the court reached was contrary to controlling federal law.").
(b) Or, is our review under the "contrary to" prong of 28 U.S.C. § 2254(d)(1) confined to the reasoning employed by the state court, necessitating a grant of federal habeas relief when the state court utilized reasoning contrary to precedent of the Supreme Court? See Van Lynn v. Farmon, 347 F.3d 735, 741 (9th Cir. 2003) ("[A] federal court may not avoid granting habeas relief by positing an alternative reason for the state court's decision that might have enabled the state court to reach the same result, where the record reveals that the state court did not base its decision on that alternative reason."); Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (noting that a state court need not even be aware of the Supreme Court's cases "so long as neither the reasoning nor the result of the state-court decision contradicts them").
(2) Does petitioner's claim amount to structural error under McKaskle v. Wiggins, 465 U.S. 168 (1984)? END

These also looked interesting:

Brewer v. Quarterman, No. 05-70056 (5th. Cir. 12/29/2006) (COA issues, IAC)

Wright v. Vaughn, No. 04-3457 (3rd Cir. 12/26/2006) (IAC fail to call witness)

Anderson v. Benik, No. 05-2323 (7th Cir. 12/20/2006)(exhaustion and proc default)

If not mistaken the Fifth Circuit has not been issuing many published decisions recently. I guess Nelson kept them pretty busy.

Today in SCOTUS

The opinion of the Court in MedImmune v. Genentech can now be found here. The syllabus is here. Justice Thomas's dissent is here.

The decision in U.S. v. Resendiz-Ponce can be found here. The syllabus is here. Justice Scalia's dissent is here.

The Court's ruling in Burton v. Stewart can be found here. (hat tip SCOTUSblog). And here, is Prof. Berman's reaction and some interesting comments concerning DIG's. Scot Henson at Grits for Breakfast (blog) might call this another "bench slap".

Here is my humble analysis of Burton, 549 U.S. ___ (2007) (dismissed for lack of jurisdiction, on which issue the state had lost challenges below).

The Procedural Bar is a Bleeping (no laughing matter): The Court sua sponte reviews a question of jurisdiction:

In a nutshell, Burton’s petition raised a question that was not properly "exhausted," and was not "excused" from the requirement (because it was presumably known to him that he might have a legitimate challenge after his sentence became final). As such it was not authorized explicitly as a “second or successive“ petition as required. But requiring authorization to proceed with a second petition presumes that one knows of the status as such.

The problem is that in 1998 when B proceeded with the first petition Apprendi had not been decided so he could not have known of the grounds under which he might challenge his sentence. Only after Apprendi (2000) was decided did he raise the challenge (in the 2002 petition) alleging violation of Apprendi. Is it so clear and obvious that a challenge the basis of which has not yet been “created” should have been foreseen, and therefore could not be excused for not having been foreseen?

The following language from Burton might seem dispositive at first glance (however, the 1998 petition was not a “mixed petition” because unexhausted grounds were not stated and the option to withdraw was not available or sensible; B proceeded with the claims he had at the time. Only after Apprendi “intervened” was he able to raise the sentencing claim under that ruling, and Blakely, posed in the 2002 petition):

That court’s ruling that Burton had a “legitimate excuse,” however, is inconsistent with the precise practice we have explained governs in circumstances such as Burton’s.
The plurality opinion in Rose v. Lundy, 455 U. S. 509, 520.522 (1982), stated that district courts should dismiss “mixed petitions“ --those with exhausted and unexhausted claims--and that petitioners with such petitions have two options. They may withdraw a mixed petition, exhaust the remaining claims, and return to district court with a fully exhausted petition. We have held that in such circumstances the later filed petition would not be “second or successive.” Slack v. McDaniel, 529 U. S. 473, 485.486 (2000). Alternatively, prisoners filing mixed petitions may proceed with only the exhausted claims, but doing so risks subjecting later petitions that raise new claims to rigorous procedural obstacles.

UPDATE: Given that a 28 U.S.C. 2244(b)(3) order was not sought (click for stat.) the Court's decision seems justified, if formalistic. This brings me back around to the question, what if you didn't think you were filing a "second or successive"? I know, this is weak, but only if you are a lawyer.

There just seems something wacky about having to ask for a pre-determination in order to file under a new rule in order to invoke that new rule for relief. Isn't it usually clear from the face of a petition that you are invoking a new rule? So what is the point of erecting these "rigorous procedural obstacles"? Surely this is not "justice" but injustice particularly to those who are not lawyers. Thanks Kent, for your response over at SL and P

Quaint Thoughts About Criminal Procedure

A Very Interesting Telephone Conversation

nb. Here is an interesting item I just found, entitled, "Recidivism and Reform, Competing Views of the State's Role in Prison" (by Jordan Ballor)--you will also find this very interesting pdf, "The State of the Law, 2006: Legal Developments Affecting Government Partnerships with Faith-Based Organizations" (by Ira Lupu and Robert Tuttle, of George Washington University's School of Law)
The Acton Institute's article was so good that I have added them to my list of links to Foundations. It is the Power Blog that you might want to sniff around in.

Yesterday I spoke to a kind and generous guy who shall remain anonymous. This person is a fellow attorney and member of the local county bar association. When I told him that the primary “target” of my project was prisoners, he kindly informed me that this group is not his primary concern, and that he sought rather to be serving the unmet legal needs of people outside of prison, making a special point to mention that these are people who have not been convicted of a crime. I should add the term not “yet” been convicted.

It was curious, thinking back now, that he would point out the fact of the conviction rather than the incarceration. So wait, do all prisoners fall into the category of needing to be locked up? Alternatives may be just as effective in some cases. That’s point number one.

It is far too easy for us to think of prisoners as richly having deserved to be imprisoned. In many cases true desserts is justified. In more than a few cases it’s not. An example is drug crimes and morality crimes. But we stray. Focusing on the crime makes it far easier to justify the prisons, to justify building, maintaining and expanding them. But when the price is paid, the sentence is carried to its full conclusion, the prison doors are opened and the prisoners become “free” again.

The attitude on the other end of my anonymous conversation clearly indicates the general nature of the prejudice that all prisoners face as a class, seeking to return to society when they are freed, in hurdling the barrier to “normalcy,” whether or not they needed to be imprisoned. That means in most cases needing a living wage and job, gainful employment. They could just as well have been whipped or put in stocks and sent on their way, back to work, or whatever. Probation for first time offenders is like this. Mandatory minimum sentences changed all that. Has it made society any better, safer, more, well, improved?

Imprisonment is actually banishment. Try moving to a new place and remaking your life. That in itself is punitive. Then try doing this after having slept, like old Rip Van Winkle, for a hundred years (okay, I exaggerated), locked away. All but forgotten.

Not only that, my caller demonstrated the hurdle that we all face, you and me, when seeking not to be charged with a crime, initially, even at the investigative stages, and when seeking to defend against charges of crime after they have been brought against the individual. The prejudicial character of this slice of American life is very strong, and this slice of American life is not insignificant.

The preference to look away is perfectly understandable. At the same time I now find it surprising coming from someone who should have, but clearly has not considered the matter very carefully. I must confess that I was one of those who had failed in an earlier life to consider this matter more carefully, even as I embarked on a career that included a bit of indigent defense work.

It was distasteful, admittedly, (I can not quite say why--perhaps I was rightly or wrongly thinking of raising my family, for their safety, or just of what I could choose or not choose to expose them to as part of my own career, or of my own childhood--maybe these are just excuses--I really do not have the answer, except perhaps to blame it on prejudice) and I chose to try to get away from it. But I can not look the other way any more. I’ve had what some might call a conversion or epiphany. Now I understand the importance of this particular section of American life.

To make a long story short I suggested to my very generous anonymous lawyer, generous for letting me talk to him for so long, that he consider the fact that people in the prisons have at a minimum four (4) (parents, siblings, grandparents, and children) individual immediate family members (and on further thought, four classes of family members) who are more than likely feeling the immediate impact of their situation, that is, of knowing somebody actually locked away in prison.

It is the needs of this cohort or group of American citizens that the Innocence Project hopes to serve the most. At the same time these efforts benefit all of the individuals who have been charged, as well as those who will be charged in the future , because the rights to habeas corpus and other “quaint” matters of criminal and constitutional procedure have a way of directly affecting the way in which the fundamental rights to Criminal Trials, and Appeals are vindicated. I hesitate to say it, but there could well be consequences whether intended or not for related areas of (non-criminal) constitutional law and federal civil procedure. The very nature of all of all of our fundamental rights are at stake when we tinker with habeas corpus, criminal procedure, and the Constitution.

Whenever a fundamental right is at stake you had better believe that it affects you in ways that you might never understand, until one day you wake up and discover that it is gone. When you hear of people given to complaining about the fact that “new” constitutional rights are being “made up” by the “personal preferences” of “activist judges,” you should well consider who is behind these efforts to take away certain hard-won and well established constitutional rights that have been around for so long a time already. Then consider who is trying to save them. Then, after that, think about who benefits.

Spectrum of Abstraction

A Spectrum of Abstraction
Does the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. 2254(d), Unconstitutionally Limit Judicial Independence by Abridging the Judicial Power Under Article III of the U.S. Constitution (to Decide Whether the Law is “clearly established”) and, Does it Unconstitutionally Suspend the Writ in Violation of Article I Section 9?

Readers should keep in mind that this note was written in the same year as the Military Commissions Act of 2006 (MCA) in which Congress abrogated the writ of Habeas Corpus in its entirety for aliens, and also at a time when certain “secret” laws or rules regarding the Transportation Security Administration are being withheld from the public (classified), and yet the public is charged with obedience to said terms or provisions.

The judges of the United States Court of Appeals for the Ninth Circuit have asked for a briefing regarding “whether, under the separation of powers doctrine or for any other reason involving the constitutionality of 28 U.S.C. § 2254(d)(1), this court should decline to apply the AEDPA standards in this case.” This question has arisen in the case of Irons v. Carey, 408 F.3d 1165 (9th Cir. 2005) (before Reinhardt, Noonan, and Fernandez—Fernandez did not join the Order). The case has not yet been decided as of today (but briefs have been filed).

In December of that same year (2005) Judge Merritt of the Sixth Circuit Court of Appeals wrote the following in a resounding dissent: “The state court's decision in the instant case neither identified nor applied the governing legal principle of Washington v. Texas that a state may not arbitrarily deny a defendant the right to call a witness whose testimony is relevant and material to the defense. With such an oversight, it is not difficult to conclude that the state court's determination that "the trial court did not err in refusing to compel Jordan to testify" was contrary to the clearly established mandate of Washington v. Texas.” Davis v. Straub, 430 F.3d 281 (6th Cir.-argued March 17, 2005).

Michigan is not exactly the deep South, but the petitioner was convicted of killing a woman and two children, an event/act/crime that rarely evokes much sympathy among even the least hardened, most liberal, or compassionate. Elaborating on the constitutional points of law nonetheless, Judge Merritt was concerned enough to write,

It seems to me that the Court's reading of AEDPA both unconstitutionally refuses to exercise the "judicial power" required under Article III in a case "arising under this constitution" and "suspends" the writ of habeas corpus in violation of Article I, Section 9. The result — life imprisonment for a probably innocent accused — so undermines both the "the judicial power" and the great writ that it leaves the federal courts without the authority to correct constitutional errors that lead to serious injustice.

430 F.3d at 295-96.

Also important for Judge Merritt was the matter of “deference” to lower court decisions (deference happens to be a matter of considerable controversy at the moment):
Using § 2254(d)(1) as a crutch, the majority simply defers to the state court's decision in which the state court neither identifies nor applies the relevant governing legal principles under either the Compulsory Process Clause or the Self-Incrimination Clause.

A Spectrum of Abstraction

The anatomy or architecture from which the notion that AEDPA may be unconstitutional arises can be found in the opening paragraph of Judge Merritt's thoughtful dissent. It actually goes back further, but a good introduction might begin in the Supreme Court of the United States with Williams v. Taylor, 529 U.S. 362, at 412, 120 S.Ct. 1495 (2000) ('With the caveat that the source of clearly established law is Supreme Court jurisprudence, "whatever would qualify as an old rule under our Teague jurisprudence will constitute `clearly established Federal law, as determined by the Supreme Court of the United States' under § 2254(d)(1).")'.

To Judge Merritt‘s way of thinking, Williams directly or indirectly supports the assertion that the Supreme Court adopted the “spectrum of abstraction of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to determine whether a particular legal principle was clearly established at the relevant time” (emphasis mine throughout).

It will be necessary to get into the reasons why this is important in short order (basically, a clearly established principle of law is required in order to rule in petitioner's favor (grant the Writ or grant relief) on the relevant issue under “new” AEDPA standards, (adopted in 1996) which revised/changed slightly the “old” review standards to include certain language to the effect that relief will not be granted unless ... unreasonable ... under clearly established law...”.
First, however, it will be interesting if not essential to explore, explain and describe Judge Merritt’s phrase, “spectrum of abstraction” in a bit of detail.

At one end of the spectrum lie legal principles with such a high level of generality, like the Eight Amendment principle of reliability in sentencing, whose application does not necessarily lead to a "predictable development" in the relevant law and therefore can not be considered clearly established. See Sawyer v. Smith, 497 U.S. 227, 236, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) [emph added]. On the other end are narrowly drawn bright-line rules with little application beyond factually indistinguishable situations. In the middle of the spectrum lie those general principles of law crafted by the Supreme Court to constitute clearly established law in a wide range of factual situations. It was the middle of the spectrum that Justice Kennedy described while concurring in Wright v. West, 505 U.S. 277, 308-09, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992).

At 292.

Nb. Teague has made things interesting because it reinforces Justice Harlan’s general rule that new rules of criminal procedure should not take retroactive application, with a few exceptions (Justice Harlan's view that new constitutional rules of criminal procedure generally should not be applied retroactively to cases on collateral review is the appropriate approach. Unless they fall within one of Justice Harlan's suggested exceptions to this general rule—that a new rule should be applied retroactively (1) if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404, or (2) if it requires the observance of "those procedures that . . . are 'implicit in the concept of ordered liberty,' " id., at 693, 91 S.Ct., at 1180—such new rules will not be applicable to those cases that have become final before the new rules were announced. Pp. 305-310.). Teague v. Lane, 489 U.S. 288, 290, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

Is the Law Ever “Clearly Established”?

People, and scholars, should soon begin to take notice of what Judge Merritt rightly points out, that the special “clearly established” lingo of the AEDPA actually goes to the heart of a series of questions that are of fundamental importance for the law generally, and not just to that body of law related to the writ:

1. How do lower courts (and the public, to whom the law is held to account, as well as their lawyers) determine whether the law of the case is clearly established?

2. How can we tell whether the lower courts properly understood, recited and/or applied the clearly established law? (Judge Merritt's point was that the majority failed to even take notice of let alone apply the correct, applicable law).

3. And ultimately, how can we know that a decision of a State or lower federal court was correct, that is to say reasonable (or not) in applying the law to the unique facts?

Readers must keep in mind that it will be extremely rare in all areas of the law that two cases will ever present completely identical sets of facts. Of course in that event it is very easy to determine the outcome only because a squarely identical matter has already been decided. Deciding what law may be applicable also involves rendering a decision as to the application of that law, which is to say, how it should be applied.

The Supreme Court has provided some guidance in this area. The facts need not be identical in reaching the conclusion that the law was clearly established. Further complicating matters, both Congress (in the AEDPA) and the Court have suggested that a case should be “indistinguishable” but that is clearly not the same as identical. The Fifth Circuit Court of Appeals recently recited the standards for granting the Writ as follows:

Under AEDPA, a federal court may not grant a writ of habeas corpus “with respect to any claim that was adjudicated on the merits in State court proceedings” unless the petitioner shows that the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or that the state court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 402-13 (2000). A state court’s decision is “contrary to” clearly established federal law if (1) the state court “applies a rule that contradicts the governing law” announced in Supreme Court cases, or (2) the state court decides a case differently than the Supreme Court did on a set of materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (internal quotation marks omitted).

A writ of habeas corpus may also issue if the state court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Under AEDPA, a state court’s factual findings are “presumed to be correct” unless the habeas petitioner rebuts the presumption through “clear and convincing evidence.” Id. § 2254(e)(1); Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).

We review the district court’s conclusions of law regarding the state court’s application of federal law de novo, and we review the district court’s findings of fact, if any, for clear error. Collier v. Cockrell, 300 F.3d 577, 582 (5th Cir. 2002).

Nelson v. Quarterman, at page 6-7, No. 02-11096 (5th Cir. December 11, 2006) (emphasis is mine). The language presenting difficulty/controversy is the “as determined by the Supreme Court”, 28 U.S.C. § 2254(d)(1). But what does Nelson offer to teach about all this? First of all, there was a close dissent (9-6, one concurring opinion by Judge Dennis) illustrating that judges on the same court can have difficulty in deciding whether the law is clearly established. (One would think it is hopeless, then, for lawyers and lay persons to embark on this determination and reach the correct conclusion). It should not be surprising then, that different courts will also sometimes disagree (as to whether the law is clearly established in a particular case,) again, because the facts are almost never perfectly identical in two or more given cases.

There is, apparently, some leeway and room for interpretation, slippage or sloppiness, in reaching the determination whether the law has been clearly established. The caveat respecting facts is necessary because when the Court decides a case it does so within its given (peculiar) facts. If another case were to come along in which the slightest deviation regarding the totality of the circumstances was observed, this inconsistency could make enough of a difference and, to that extent it would be inappropriate to apply the law of the previously decided case. In this event it would have to be said that the law was not clearly established.

We learn from this peculiarity then, that the law is very rarely “clearly established” because the facts are so rarely identical. This is where the spectrum of abstraction Judge Merritt talks about re-enters the picture. All is not lost because the law operates also in terms of principles that can be broadly applicable in similar situations, if the situations are similar enough. There is a trick to making that determination.

Here, we might take instruction from Judge Merritt, again dissenting in Davis v. Straub, 430 F.3d 281:

The majority defers by concluding that there is no Supreme Court case with indistinguishable facts. As explained above, this is not the correct interpretation of § 2254(d)(1). Such an interpretation would withdraw from the federal courts, including the Supreme Court, the judicial power to interpret independently the Constitution in most cases and would make the state court's decision the rule we must follow. Such an application of the federal judicial power established in Article III would render § 2254(d)(1) unconstitutional, as Justice Stevens suggests and Klein holds.

And further:

Congress may not say to the federal courts "clearly established law" means a case in the Supreme Court directly in point on the facts, just exactly like the case you have before you. It may, however, say, as the Supreme Court has already said Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny, you should follow constitutional language and the principles and standards established by the Supreme Court and in existence at the time the state court completed its case. In the present case, my colleagues have said rather, there is no case in the Supreme Court just like the present case — no case directly in point on the facts — and hence the habeas petition must be dismissed. They say that Supreme Court precedent must be defined in its narrowest sense. Such a reading of § 2254(d)(1) renders it unconstitutional by preventing our Court from giving our independent judgment on the legal effect of the evidence before us and by leaving us "no adjudicatory function to perform."
Id., (emphasis mine throughout).

TBC

Morilun Zolbrod, Esq.
Research Consultant For Hire
(*I am not currently engaged in the private practice of law or affiliated with any lawyer or law firm*)
301-591-2490

Trends and Updates

A few interesting things to note:

Judicial Activism is not necessarily always a "liberal" phenomenon, esp. in the area of Seventh Amendment jury trial right, (re judges taking matters away from jury via summary judgments) (hat tip scotus)

And excellent piece by Jonathan Hafetz "American Justice on the line" from Huffington Post referncing Federalist #84. Hafetz is one of Al-Marri's lawyers, (see below).

There is a lot happening in the Fourth Circuit with the case of Al-Marri v. Wright (docket 06-7427) which plans to hold a hearing on it early in February. Scoot over to SCOTUSblog for all that. Judge Robertson's Order dismissing Hamdan's case from last week is over there too.

Find links to Carey v. Musladin commentary by Prof Amar and Maryland high court ruling halting executions at Standdown Texas.

Doug Berman (SL and P) asks whether the PROSECUTOR should request clemency for Genarlow Wilson. The comments (4) illustrate what I was talking about here this morning concerning my friend who thinks PROSECUTORS OFFICES are where you can really make a difference in this area of the law.

What Ails Republicans?

Sorry, I only made one entry yesterday; I usually strive for two, but it is getting a little busier right now (or am I just trying to do a little more other stuff?). Enjoy, and comments, guest blogging are always welcome. Heard on C-Span Radio this morning on my daily commute, "mean tough guys" in prisons should be given a chance to serve in the military and not waste their youth. There are, admittedly, a lot of ready, willing and able men (and women) who are probably not too far gone, dangerous, or feeble-minded to serve. There is a good solution to the Army's/Marine's recruiting problems. As we know, many of these guys just made one mistake, got caught doing what a lot of other people are doing or have done, and/or simply don't need to be locked up.

Also had an interesting discussion that went (sort of) like this.

Friend: if you want to make a difference in the area of habeas corpus you have to work for the prosecution--they are the only ones who have the power to do anything (about a wrongful conviction or faulty/illegal confession for instance).

I was not able to articulate the fact that in our adversarial system too many prosecutors will NOT go out of their way to fight for right, but find that to advance in their careers they must litigate every "nook and cranny" of the law, and look the other way when Brady evidence is obvious, or just when a case might smell bad from the beginning. That mean "not caving" even when you think the other guy is right, although justice might require that. That is why justice is so hard to come by in places. It is true, my friend's point, that in habeas prosecutors hold all the cards because so few defense lawyers do that kind of work and so few prisoners can pay a lawyer after they've spent their last dime fighting on trial, appeal, etc.. Only in death penalty cases is a lawyer required in habeas. In all other cases prisoners are not constitutionally entitled to a lawyer.

My experience in Virginia, a few years back, did however give me some faith that prosecutors tried to do the right thing most of the time but this does not hold true for all too many of the other jurisdictions, especially in the South, Old South, Deep South. Evidence of that is still, sadly, seen every day.

What ails the Republicans? Find out from Newsweek.

Look what I found:

One of the ill-concealed subtexts of my book Our Undemocratic Constitution is that my colleagues in the legal academy pay much too much attention to the rights-conferring parts of the Constitution (which are often exactly what Madison predicted they would be, "parchment barriers" that are all too permeable given the right degree of public panic and malleable judges) and too little attention to the "hard-wired" structural features that, I now believe, explain much more about the actualities of American politics than do the clauses that law professors fixate on...

Get the rest of piece here: (from The New Republic)

This is why I love the guys over at TNR:
Last week the Washington Times op-ed page, in the form of the
oleaginous (oily? not holy oil? greasy?) (more here)
Tony Blankley, voiced its concern that Hillary was going to rough up Barack Obama. Now it's the Wall Street Journal's turn. Here's John Fund ...

Also, found this

over there.

(what I really meant to say, here, was "one of the next future presidents...")

Veto of Banishment Law Upheld:

“As parents we need to be constantly vigilant of our children. Preventing sex offenders from living here does not prevent them from being here,” Mr. Ossing said. “This law is going to be another unenforceable feel-good law.” Finally, common sense seems to be taking hold. Read this here and more here.

In the Richmond Times Dispatch (in police beat somewhere, a new federal pd office opens in Western Virginia). Andrea Lantz Harris and Frederick T. Heblich are the first lawyers hired in a new defender's office serving the Charlottesville and Harrisonburg divisions of the U.S. District Court for the Western District of Virginia.

I am adding Richmond Times Dispatch and probably Baltimore Sun and Annapolis papers to the MSM links (at right).

"No New Prisons" Campaign starts up in Washington State.

More on the Drug War, Borden's blog.

TGIF

TGIF Heading into another Weekend here is a newsy update. So we'll poison the well in order to save the water. That's right, send more troops says Sen. McCain. Of course the generals need a bigger standing army to do this. I respectfully disagree. Do not throw good money after bad.
Here's the plan: draw a perimeter, tell the Saudis to mind their own business and simmer down. We'll save money, lives (ours), and credibility. No matter who controls Iraq it will still be Muslim, anti-American and non-democratic. We need to go back to "self-determination". We lost before we even started. They can sort it out better than we can. Keep terrorism inside/contained AND away from our troops.

The sad story of the Botched execution(s) is here.

Baseball Fans: new import from Japan is the Type O Warrior (hat tip NYT)
In Japan, people with Type O are commonly referred to as warriors because they are said to be self-confident, outgoing, goal-oriented and passionate. According to Masahiko Nomi, a Japanese journalist who helped popularize blood typology with a best-selling book in 1971, people with Type O make the best bankers, politicians and — if you are not yet convinced — professional baseball players.

Poll Says the New Congress is Trusted: Americans trust Democratic lawmakers more than President Bush to handle the nation's toughest problems, including the Iraq war, and a quarter of Republicans are glad that Democrats have won control of Congress, a Washington Post-ABC News poll finds.


A good blurb on Terrorism and Security (by Tom Regan of Christian Science Monitor)

Here you will find a good roundup of the blog and media coverage of the Musladin Supreme Court decision. Hat tip Kent at Crime and Consequences.

Too Good to Pass: Mike at Crime and Federalism (link below at "Mike says")has this called "How Scalia Views the "Little People" -- juicy, for "populist conservatives" -- Here is how Justice Antonin Scalia views 99% of people:

"If you become a federal judge in the Southern District of New York (Manhattan), you can't raise a family on what the salary [$165,200] is," Scalia said during a speech to the Northern Virginia Technology Council.

Mike says: Ninety-nine percent of people make much less money than that. According to Justice Scalia, they must not be raising their families properly. Only the little people make less than 150K. I would love for someone to explain why someone who holds such viewpoints about Americans is considered a populist hero by lower-income conservatives.

Open Letter to Justice Scalia by Keith S. Hampton is here.

More on Hamdan (hat tip Kent at Crime and Consequences)
District Court has dismissed for lack of jurisdiction the habeas petition of Guantanamo detainee Salim Hamdan, whose case went to the Supreme Court in Hamdan v. Rumsfeld.

The opinion has three main points. First, the statute did repeal the court's habeas jurisdiction. The court brushed aside rather easily the shaky statutory interpretation argument that it did not.

Second, Congress has not validly suspended the writ of habeas corpus. The constitutional conditions for suspension, rebellion or invasion, are not present. "If and to the extent that the MCA operates to make the writ unavailable to a person who is constitutionally entitled to it, it must be unconstitutional."

Third, Hamdan is not constitutionally entitled to it. Here Judge Robertson has an analysis of the historical cases of habeas for aliens that is quite consistent with our brief in Hamdan and rejects the superficial citation of these cases by Justice Stevens in Rasul v. Bush, n. 11.

Hat tip also Crime and Consequences re the Duke rape case. David Scott of AP reports on a defense motion in the Duke Lacrosse team rape case alleging that a DNA test by the prosecution showed multiple males' DNA but none of the team members' and that the result was not disclosed to the defense. The story doesn't say what relief the motion is requesting. Given that they do have the information months before trial, there doesn't seem to be a Brady violation here.

RE Counsel, Medellin and Acker in CCA by Austin American Statesman, here (Nov. 20).

"This state's highest appeals court for criminal cases consistently ignores justice, even when the evidence of injustice is clear. True to its recent history, the court last week rejected two appeals from condemned inmates whose trials were travesties of justice."
"The most ardent death penalty advocate understands that a capital murder proceeding must guarantee a fair trial. One of the strongest arguments against capital punishment in Texas is that the judicial system is so broken that innocent defendants can be condemned and executed."

Cause and effect: The AP reported 12/12--that CCA set new rules to ensure better performance of lawyers for death row. Rules were adopted Monday, (12/11?).

Trends and Updates: More on Musladin

Google blogsearch Skilling (as in Jeffrey) for all the blogs on going straight to prison. It usually means getting an early start on the time, inevitably, to be served pending appeal. It is a significant blow, however, when the defendant has even a slight chance of winning remand or reversal on appeal.

A Poll, always interesting, about Government and Privacy here from Washington Post:

Sixty-six percent of those questioned said that the FBI and other agencies are "intruding on some Americans' privacy rights" in terrorism investigations, up from 58 percent in September 2003. Thirty percent think the government is not intruding on privacy.

Support for intrusive tactics has dropped even more significantly during that time. A bare majority, 51 percent, feel the tactics are justified, down from 63 percent three years ago.
The poll was conducted by telephone from Dec. 7 through Monday, and the results have a three-percentage-point margin of error.

RE: Carey v. Musladin (my earlier posting here -- opinion here Carey v. Musladin). Justice Thomas:

This Court has recognized that certain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial. Estelle v. Williams, 425 U. S. 501, 503-506 (1976); Holbrook v. Flynn, 475 U. S. 560, 568 (1986). In this case, a state court held that buttons displaying the victim’s image worn by the victim’s familyduring respondent’s trial did not deny respondent his rightto a fair trial. We must decide whether that holding was contrary to or an unreasonable application of clearly established federal law, as determined by this Court. 28 U. S. C. §2254(d)(1). We hold that it was not.

***Given the lack of holdings from this Court regarding thepotentially prejudicial effect of spectators’ courtroomconduct of the kind involved here, it cannot be said that the state court "unreasonabl[y] appli[ed] clearly established Federal law." §2254(d)(1). No holding of this Courtrequired the California Court of Appeal to apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state court’s decision was not contrary to oran unreasonable application of clearly established federal law.

My thought: SCOTUS could simply decline to establish clear law, accomplishing the aim of making it impossible for lower courts to grant relief under the AEDPA standard. Indeed, Justice Thomas's opinion clearly reflects a reluctance to provide much, if any, guidance as to what the substantive law is. He has simply found no clearly established law on the issue and that is the end of the matter for him. Too bad that all SCOTUS cases are not so easy to resolve, and that two of the often "liberals," Justices Ginsberg and Breyer, joined in this swat against justice and stare decisis.

If the justices do not wish to discuss the substance of the law, what is and was, and what could or should be, then why grant cert at all? The answer in this case? Just to reverse the Ninth Circuit. How does this advance the stated goals of the Court's review powers?

The good thing might be that the case leaves open the door just a skosh for a similar claim in which better facts might be found. But what better facts could there be involving possible coercion, intimidation, in the courtroom? It would seem that there MIGHT be a matter of degree in question, but when it comes to coercion or intimidation it is hard to draw the line between how much is too much. The analogy is this: how much pain is too much? Just cut off the pinkie, maybe...or just the tip of the pinkie finger, that won't hurt quite as much.

The real lesson here is that you can not shoot and kill somebody and expect to get habeas relief afterwards. This is page 1, section I, para. 1 of the opinion: On May 13, 1994, respondent Mathew Musladin shot and killed Tom Studer outside the home of Musladin’s estranged wife, Pamela. Game, set, match, checkmate, strike three, game over. Simple as that for this panel. That is not good news for the law. Because the point of the law is to make darn sure that you did the killing (with requisite intent), not that there was one.

Circuit Trends in Habeas Corpus, AEDPA

When did you last admit to having made a mistake about something? Anything. That is why judicial review, and in particular, Habeas Corpus review, remains so extraordinary. It provides a searching and thorough reexamination in a matter of controversy and, where warranted, it requires the finding: judge, you made a mistake. To a judge this must be an excruciating moment, akin to punishment. Habeas writs are granted very infrequently, so that when they are granted that is news. Here are a few items of note recently published elsewhere that I happen to be collecting, and now make available to you, dear readers:

Killing Habeas: Maryland's Unique contribution to the history of Habeas here

President Abraham Lincoln suspended habeas corpus in Maryland on April 27, 1861, two weeks after the Confederate attack on the Union garrison at Fort Sumter. “Lincoln could look out his window at the White House and see Robert E. Lee’s plantation in Virginia,” Akhil Reed Amar, a professor at Yale Law School and the author of “America’s Constitution,” said. “He was also facing a rebellion of so-called Peace Democrats in Maryland, meaning there was a real chance that Washington would be surrounded and a real threat that the White House would be captured.” On Lincoln’s order, federal troops arrested Baltimore’s mayor and chief of police, as well as several members of the Maryland legislature, who were jailed so that they couldn’t vote to secede from the Union.

Relief Granted:

	Stewart v. Wolfenbarger, No. 04-2419 (6th Cir. 11/9/2006) (6th Cir., 2006) See previous post here.

A Question of Innocence:

	Rittenberry v. Morgan, No. 05-5606 (6th Cir. 11/9/2006) (6th Cir., 2006)

When does procedural default bar federal review? When is a state-court decision based on "independent and adequate state grounds"? Triggering these questions was Confrontation Clause ruling reviewed in Wright v. Quarterman, No. 05-70037 (5th. Cir. 11/17/2006) (5th. Cir., 2006). This case seems to say that you must make a contemporaneous Sixth Amendment objection together with a Hearsay objection under Texas Rules of Evidence in order to preserve Confrontation Clause grounds for federal habeas review. But I was under the impression that the Texas Rules of Evidence are grounded in the federal rules...or does that not matter? But what if the fundamental reasoning for having hearsay objections (and exceptions) was grounded in the Confrontation Clause itself? Can that not be sufficient?

Grant of Relief Affirmed in James v. Brigano, No. 05-4003 (6th Cir. 11/30/2006) (6th Cir., 2006) resolving a question of procedural default

(Ohio Court of Appeals' lengthy opinion denying James's motion to reopen does not frame its rejection of James's underlying claims as a failure to find prejudice or on procedural grounds, but instead rejects those claims on their merits. Therefore, because the Ohio Court of Appeals did not actually rely on the procedural bar in rejecting either of James's claims, those claims are not procedurally defaulted for habeas purposes)

James's other claim for habeas relief is that his waiver of appointed counsel before the state trial court was not made knowingly and intelligently. As the record makes clear, at no time did the state trial court judge ensure that James's waiver of appointed counsel was knowing and voluntary. At no time did the state trial judge explain to James the risks and dangers in proceeding pro se. And at no time did the state trial judge make an explicit finding that James's waiver was knowing and intelligent. Instead, the state trial judge appeared to accept, and the Ohio Court of Appeals explicitly accepted, the idea that James was attempting to delay trial and avoid the administration of justice when he tried to fire Stewart with his outbursts in front of prospective jurors and to the court after voir dire.

Neither the state trial judge nor the appeals court addressed the question of waiver, even though "courts [should] indulge every reasonable presumption against waiver of fundamental constitutional rights."Johnson v. Zerbst, 304 U.S. 458, 464 (1938)".

As the district court pointed out, under even the AEDPA standard, the finding that James knowingly and intelligently waived appointed counsel was a failure to apply clearly established Supreme Court precedent because of an unreasonable finding of fact.

Remanded, Writ Vacated on Non-retroactivity: Albrecht v. Horn, No. 04-9005 (3rd Cir. 11/21/2006) (3rd Cir., 2006)

See Previous Post here: St. Aubin v. Quarterman, No. 05-40277 (5th. Cir. 11/21/2006) (5th. Cir., 2006)

Affirmed Conditional Relief: Higgins v. Renico, No. 05-1564 (6th Cir. 11/20/2006) (6th Cir., 2006)

More Trends: Habeas

Terrorism, Bush Wars, Habeas over at Slate, here.

The writ has been suspended only four times in U.S. history; the last one was in 1941 in Hawaii right after the attack on Pearl Harbor, according to this brief.

The government's handling of al-Marri is an utter departure from historical practice. Noncitizens in the United States have constitutional rights, including the right to due process if they face criminal charges. When they're convicted, they routinely file habeas petitions, as they have for centuries. The Supreme Court explained all of this in a 2001 case, INS v. St. Cyr, in which the government wanted to deport an immigrant convicted of a crime without any judicial review. The court forbade that, saying that the constitution protects the rights of "all persons in the United States."

Read all about the just announced $2 million settlement here (hey, they can break into my house anytime) paying Brandon Mayfield, the Oregon lawyer wrongly jailed in connection with the 2004 Madrid bombings. This Bush administration is not as bad as the Nazis. They do pay when they muck up.

What, us torture? Read this from Newsweek.

And get more of Z's articles on these topics over at Usavoice, here, here and here.

Just in from the Fifth Circuit

Just out is an unusual case, click here, in that TCCA had ordered a review by affidavit after a recommendation (without conducting a hearing) from the trial court to deny relief, following which the district court conducted even more extensive hearing and fact-finding proceedings. Many if not most cases are decided with little or no fact finding below. At least St. Aubins can feel like the courts looked at the evidence in his case. The court also updated its formulation of AEDPA deference, reying on the Neal, Henderson, Collier and Cluck cases from within the circuit, and Williams, Bell, and Rompilla from SCOTUS; and concerning the failure to investigate claim, Miller, 420 F.3d, Wiggins, and Strickland. Because the facts revealed that St. Aubin's lawyer had conducted a pretty thorough investigation and decided not to investigate further or present evidence at issue to a jury the court affirmed the denial of relief.

But it is surprising and highly questionable for the court to rule categorically that it was not unreasonable to investigate mental health history further just because what was discovered was thought to be damaging. That completely discounts the possibility that mitigating evidence might have been uncovered upon further analysis and investigation.

The court also presented some interesting cases and comments on "double edged" evidence.

St. Aubin v. Quarterman, No. 05-40277 (Fifth Circuit, Nov. 21, 2006)

Political Questions of the Day (A very slow news day so far)

How Much Will "Being Tough on Immigration" hurt tough-guys in the next election? (How many "immigration-minded" voters reside in critical states and how do you keep them happy?)

"Yo noo-moo-dubya" political landscaping early is at Wapo

Battles shaping up over Habeas and Counter-Terrorism, and what REAL MEN she links with are talking about with Michelle Malkin: "Probe-a-palooza"